Effective Investigations of Harassment Complaints

STEP 1: BEFORE A COMPLAINT IS FILED

The first step in an effective procedure is identifying the person who will be responsible for investigating complaints. Should litigation over an allegation of harassment eventually occur, the investigator is a first and irreplaceable line of defense. The investigator should present him or herself well, be trained in recognizing workplace harassment and discrimination, and be approachable by employees. Whenever possible, the same investigator should be used in every investigation to allow easier identification of patterns that might be overlooked otherwise.

Second, all employees should know the names of persons to whom allegations of workplace harassment should be directed. All complaints need not be made directly to the designated investigator. Rather, any managers or supervisors whom the employer trusts with the responsibility for the reporting of workplace harassment can be identified as proper agents for submitting complaints of harassment.

All managers should be instructed to obtain basic information about allegations of harassment, and should take notes regarding the complaint, including the date on which the complaint was made. The complaint should then be immediately turned over to the designated investigator for further action. Allegations of workplace harassment, even if not expressly sexual or racial, must be taken seriously. Investigating even complaints that appear to be no more than employee "grumbling," serves a number of important purposes. First, investigating complaints encourages employees to feel comfortable reporting workplace issues. When allegations of illegal harassment eventually do arise, employees comfortable with their employer's complaint procedures and human resources personnel are more likely to report their problems immediately. Second, erring on the side of conducting an investigation protects the employer in the future from having an employee sue, claiming that their complaint was, in fact, about sexual harassment and alleging they were not taken seriously.

Third, a clear written record must be kept at every step of the investigation process. The investigator should create a separate confidential file for each harassment investigation. All notes regarding that investigation, including the initial complaint, any subsequent interviews or investigation notes, and photocopies of any discipline against alleged harassers should be placed in that file so that, should litigation later occur, all information regarding the investigation is in one place. Finally, memoranda should also be placed in the complaining employee's and the accused employee's personnel files referring to the fact that a complaint was made, an investigation conducted, and that the file detailing that investigation is kept in a particular place.

STEP 2: DEALING WITH A WORKPLACE COMPLAINT

An investigation should be launched immediately once a complaint is made. The designated investigator should contact the complaining individual within 24 hours to conduct a thorough investigation of the complaint and to determine if immediate action, such as removal of the complainant from the working environment, is needed.

At the meeting, the investigator should gather specific information from the complaining employee, including a detailed description of the harassing behavior, names of other employees who may have witnessed the behavior, and dates and times the behavior allegedly occurred. Also, the employee can be asked if he or she has reported these problems before and, if so, to whom. This information should be placed in a written report, signed and dated by the complaining party. Gathering information in this fashion makes follow-up by the investigator simple, and creates a signed record of the complaint for use in future litigation.

Often, an employee will make a complaint and request confidentiality should any further action be taken. Such a request cannot be granted if doing so would compromise the company's ability to investigate. The investigator should explain to the employee that, though confidentiality will be maintained as much as possible, the company has an obligation to investigate allegations once they are made. Follow through with this explanation. If an effective investigation can be conducted without disclosing the complaining employee's name, do not disclose it. However, if the allegations make it impossible to investigate effectively without disclosing the complaining employee's identity, then the investigator must err on the side of conducting a thorough investigation, rather than maintaining confidentiality.

After obtaining a detailed complaint from the complaining employee, the interviewer's next step should be to interview the alleged harasser. The interviewer should first explain that an employee has made some complaints that are of some concern to the company's management. The accused employee should be instructed to make no attempt to discuss the allegations of harassment with the complaining employee, and told that no action may be taken against him or her in retaliation for making a report to management. The investigator should then discuss the specifics of each incident. If the accused admits to the conduct, try to determine why it occurred - did the harasser think he was joking? Did he think that the complaining employee was romantically interested? If the accused does not admit to the conduct, get a detailed explanation of the accused's side of the story, and ask for any documentation that he or she may have which supports their version of events. Ask for the names of any potential witnesses. In a "he said she said" scenario, disinterested third parties are often the investigator's best source of information.

Finally, interview any witnesses to the alleged harassment. To the extent possible, the investigator should try to elicit information at the beginning of the interview without revealing the identity of either the complaining party or the accused. A witness will often offer information that calls into question one version of events or the other without any further coaxing from the investigator simply by asking about whether that employee perceives there to be any problems in the workplace, whether they know of any incidents that might be viewed as harassment, or whether they have observed any behavior that they feel is inappropriate in the workplace. Should that approach prove unsuccessful, ask specific questions about the interplay between the accused and the complaining employee, as well as specific incidents of harassment that are alleged to have occurred. Also ask if there is anyone else they believe should be interviewed, or who might have information about the allegations.

STEP 3: MAKING THE DECISION

Once the facts are collected, a decision must be made about the employer's response to the allegations. The investigator must weigh the facts, including the credibility of the parties, to determine whether or not the conduct complained of occurred. Some investigations will be inconclusive. In those cases, even if the employer takes no action against the alleged harasser, it may still be protected in the face of a future harassment lawsuit, assuming that the investigation was thorough, prompt, and unbiased.

In other cases, the employer will determine that no federal or state law against harassment has been broken, but that the employer's own practices have nonetheless been violated. For example, a manager might not be sexually harassing employees, but might have an abrasive and inappropriate management style not encouraged by the organization. Discipline is appropriate in such cases, but not under the employer's harassment policy. The accused employee should be disciplined for violation of company rules or general employer civility codes, but not for sexually harassing another employee.

Where sexual harassment is determined to have occurred, discipline must follow under the appropriate corporate policy. Discipline can take a number of forms, including oral warnings, written warnings, training for the accused and/or the entire work force, a program of corrective action with specific goals and checkpoints, moving the accused to a different shift or area, suspension without pay, and termination. The ultimate goal is to end the inappropriate conduct and to give the offending employee clear notice that the behavior is unacceptable. To determine what level of discipline is appropriate, the nature of the conduct should be considered, as well as its frequency and any previous complaints for similar conduct.

Once an appropriate response is determined, it should be communicated to the complaining employee and to the harasser, both at a face to face meeting and in writing. The reasons for the employer's action should be explained, and the reasons for any conclusions that the employer made should be explained. The process should not be a "black box" from which decisions spring without explanation. Instead, the employees should understand why decisions were made, even if they do not necessarily agree with them.